On October 26, 2018, the U.S. Supreme Court granted a petition for a writ of certiorari in the case of Mission Product Holdings, Inc. v. Tempnology, LLC, to decide the issue of whether a debtor-licensor’s rejection of a trademark license agreement under section 365 of the Bankruptcy Code terminates the rights of the licensee to use the applicable trademarks. No. 17-1657, 2018 WL 2939184 (U.S. Oct. 26, 2018). The appeal arises from a decision by the U.S.

The reality of a bankruptcy proceeding is that creditors often receive less than a full distribution on their claims, forcing them to absorb such losses or look for new avenues to make themselves whole. The “bankruptcy haircut” is more often the case for general unsecured creditors and occurs less often for secured creditors (when they are not undersecured) and lessors (when they are not underwater on their lease). Sometimes creditors have the luxury of looking to guarantors to mitigate their losses when the guarantors are not insolvent or otherwise judgment proof.

On April 17, 2018, the U.S. Bankruptcy Court for the Southern District of New York (the “Court”) issued a decision requiring CohnReznick LLP (“CohnReznick”) to produce documents requested by the foreign representatives (the “Foreign Representatives”) in the chapter 15 case of Platinum Partners Venture Arbitrage Fund (International) Limited (in Official Liquidation) (the “International Fund”).

The Bankruptcy Code gives a bankruptcy trustee, or the debtor in possession, the power to “avoid” certain transfers made by the debtor at various times before filing for bankruptcy relief.

In order to secure a real property owner’s payment obligation, contractors, mechanics, materialmen, and other workmen are often granted a lien referred to by a variety of names including, materialmen’s liens, workmen’s liens, and mechanic’s liens. While the parlance varies by jurisdiction, they are generally referred to as mechanic’s liens in Texas—even in the context of real property.

Undersecured creditors face unique challenges because they are neither fully secured nor fully unsecured. Beyond the obviously undesirable issue of being upside-down on their deal, undersecured creditors often are exposed to preference liability for those payments they received in the 90 days prior to the debtor filing bankruptcy. This is especially true where an aggressive trustee is looking to create value or where an opportunistic trustee sees a chance to make a quick buck.

Globalization has led to a marked increase in international components to insolvency proceedings. Cross-border issues add a new layer of complexity to what is often a situation already fraught with obstacles. Courts and practitioners alike face additional difficulties communicating with other courts, resolving issues consistently in jurisdictions with different laws and policy objectives, and enforcing rulings and implementing orders adjudicated extraterritorially.

On March 23, 2017, the U.S. Bankruptcy Court for the Southern District of Florida (the “Court”) issued an opinion in the chapter 15 case of Banco Cruzeiro do Sul, S.A., a Brazilian bank (“BCSUL” or the “Debtor”), holding, among other things, that section 1521(a)(7) of the Bankruptcy Code does not prevent foreign representatives from commencing state law fraudulent conveyance actions. See Laspro Consultores LTDA v. Alinia Corp. (In re Massa Falida Do Banco Cruzeiro Do Sul S.A.), No. 14-22974-BKC-LMI, Adv. Pro. No. 16-01315-LMI, 2017 WL 1102814 (Bankr. S.D. Fla.

On January 18, 2017, the U.S. Court of Appeals for the Second Circuit issued an opinion in the case of Trikona Advisers Limited v. Chugh, No. 14-975-cv, 2017 WL 191936 (2d Cir. Jan. 18, 2017), thwarting an attempt to expand the scope of Chapter 15 of Title 11 of the United States Code (the “Bankruptcy Code”). Specifically, the Second Circuit held, among other things, that Chapter 15 does not prevent a U.S. District Court from giving preclusive effect to the findings of a foreign court presiding over an insolvency proceeding where the action pending in the U.S.

On June 28, 2016, the U.S. Supreme Court agreed to hear a challenge to a Third Circuit-affirmed settlement and dismissal of the chapter 11 cases of Jevic Transportation, Inc. (“Jevic”) and certain of its affiliates. SeeOfficial Comm. of Unsecured Creditors v. CIT Grp./Bus. Credit Inc. (In re Jevic Holding Corp.), 787 F.3d 173 (3d Cir. 2015), cert. grantedCzyzewski v. Jevic Holding Corp., No. 15-649, 2016 WL 3496769 (U.S. 2016).